On Thursday and Friday, several of the print contributors as well as other international experts will engage on various topics intersecting with LGBT asylum and refugee law raised by Professor Hathaway’s article here at Opinio Juris. Rather than taking a traditional Q&A approach, we felt that it would be more productive to actually use direct quotes from the Hathaway/Pobjoy article and responses to ignite conversation. The first two panels focus on the definition of “being persecuted”, while the second panel focuses on the issue of “nexus”. Click here to follow the symposium at Opinio Juris this week.

The Supreme Court will soon decide the fate of litigation seeking to hold U.S. corporations accountable under the Alien Tort Statute (ATS) for aiding and abetting human rights abuses overseas. In September 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum that the statute did not apply to corporations.[1] Since then, several other circuits have ruled otherwise, leading the Supreme Court to grant certiorari in Kiobel in October 2011. Oral argument is scheduled for Tuesday, February 28.[2]

The outcome of this case will be profoundly important. If the Court affirms the Second Circuit’s majority opinion, alien victims will no longer be able to sue corporations under the ATS. In many cases corporations will be free to profit from overseas human rights violations, while safeguarding their assets against compensation claims.[3]

Looking ahead to the Court’s decision, I summarize below the evolving jurisprudence of the ATS, including the circuit split over the statute’s applicability to corporations and the mens rea standard for aiding and abetting liability. If the Court limits itself to the Questions Presented in the certiorari petition, it will decide only whether the ATS applies to corporations. However, the Court may also resolve other points of contention among the circuits, including the mens rea standard for aiding and abetting liability. After reviewing the case law, I conclude with several arguments—instrumental, descriptive, and policy—in favor of recognizing corporate liability under the ATS.

On July 16, 2010, when the debt crisis that currently engulfs Europe was still beginning to take shape, I discussed the Implications of European De-Integration for International Law, in a short post on this blog. In the post, I predicted that the fiscal crises would have major implications for the future of European integration and that—unlike the original euro project—efforts to deal with the crisis “will not be the result of a popular policy preference, but instead will be the product of an external constraint on the ability of European economies to remain integrated without spiraling into chaos.”

Since the Summer of 2010, events have not taken a positive turn, and hopes of finding an easy resolution to the problem of rapidly increasing public debt in several Eurozone countries have deteriorated. It is now clear that the Eurozone as initially constituted is a failure, and will need to be revamped and remade in a new, and largely unrecognizable, form. Whether the future of the euro and Eurozone lies in radical integration or in disintegration at this point remains uncertain.

Some of the basic ideas in the original blog post have been fleshed out in an article that I published in Volume 17 of the Columbia Journal of European Law, entitled Implications of European Disintegration for International Law. The Article explains the structural problems with the euro system which make the current crisis so intractable, and also offers some lessons for international law more generally. From the abstract:

The European debt crisis that started in 2009 has revealed underlying structural problems in the European Monetary Union, threatening the viability of the common currency in its current form. An unraveling of monetary coordination in Europe would mark a significant event of disintegration, in the face of a decades-long trend of integration that was commonly considered an inevitable and self-sustaining process.

This Article argues that even a reasonable possibility of disintegration of this magnitude upsets previous theorizing about European integration which over-emphasized the EU’s “supranational” character.

More generally, disintegration poses serious problems for international law scholarship across the ideological spectrum, much of which has organized itself around the historically contingent trend of integration as if it were an a-historical given. The debt crises reveals that use of Europe by both “Skeptical” and “Cosmopolitan” international law scholars is largely an opportunistic rhetorical strategy that conceals fundamental weaknesses of both viewpoints in their debate over the limits and promise of international legalization and cooperation.

The French prohibition of surrogate motherhood, resting on moral and ethical considerations, raises complex issues of private international law.

Surrogate motherhood has been prohibited in France since 1991, under a decision by the Cour de cassation (France’s highest court), (Cass. Ass. plén., 31/05/1991). This prohibition was confirmed in the bioethics law of 1994, and is codified in article 16-7 of French Civil Code (“Civil Code”). Article 16-9 of the Civil Code makes this a prohibition of public order (In France, prohibitions of ordre public or public order are mandatory rules created unilaterally by the state to protect fundamental values of the society, and from which parties have no freedom to derogate. A foreign law applicable under a conflict of laws analysis would be evicted if contrary to a mandatory rule). A surrogacy contract is null and void, and violations are punished by civil and criminal sanctions (civil sanctions are described in articles 311-25, 325 and 332-1 of the Civil Code and criminal sanctions at articles 227-12 §3 and 227-13 of the Penal Code).

The prohibition is justified by different moral and ethical concerns: to prevent children from becoming commodities traded as merchandise between infertile couples and surrogate mothers; to protect the interest of children who are psychologically at risk in such transaction; and to prevent the exploitation of surrogate mothers who must relinquish parental rights to the child after giving birth. Surrogate mothers are usually from lower economic strata and are economically exploited in this transaction. Statistically there is an inherent social division in this practice. This is evinced by the fact that most surrogacy contracts require compensation because very few women would bear someone else’s child for free. This social division is not new – surrogate mothers were slaves in the days of the Bible and Ancient Rome.

The Fall 2011 issue of the Journal of International Law and Politics will soon be available at our official NYU website. Stay tuned for our online discussion hosted by Opinio Juris featuring reactions from leading scholars to the following three articles:

On October 14, 2011, NYU School of Law will host a symposium entitled “From Rights to Reality: Beth Simmons’s Mobilizing for Human Rights and its Intersection with International Law. The Journal of International Law and Politics is proud to co-sponsor this event with the International Law Society and Law Students for Human Rights. It will examine Beth Simmons’s award-winning book, “Mobilizing for Human Rights: International Law in Domestic Politics,” and present reactions from leading scholars on the empirical effects and theoretical implications of promoting human rights through the instruments of international law. Please RSVP here.